Carmody v. Thompson

• Decision Date: 03 October 2012
• Docket Number: No. 4–12–0202.,4–12–0202.
• Parties: Kevin CARMODY, Plaintiff–Appellant, v. Charles THOMPSON, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2012 IL App (4th) 120202

977 N.E.2d 887

364 Ill.Dec. 978

34 IER Cases 1042

Kevin CARMODY, Plaintiff–Appellant,

v.Charles THOMPSON, Defendant–Appellee.

No. 4–12–0202.

Appellate Court of Illinois, Fourth District.

Oct. 3, 2012.

Charles Lee Mudd, Jr., Stephanie M. Snyder, Mark A. Petrolis (argued), Mudd Law Offices, Chicago, for Kevin Carmody.

William J. Brinkmann (argued), Thomas, Mamer & Haughey, LLP, Champaign, for Charles Thompson.

OPINION

Justice POPE delivered the judgment of the court, with opinion.

[364 Ill.Dec. 979]¶ 1 In September 2011, plaintiff, Kevin Carmody, filed a complaint against defendant, Charles Thompson, for defamation per se, false light, and tortious interference with contractual relations following plaintiff'stermination from the University of Illinois (University).

¶ 2 In November 2011, defendant filed a motion to dismiss pursuant to section 2–619(a)(1) of the of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2–619(a)(1) (West 2010)), arguing the cause should instead be heard in the Court of Claims because defendant's actions were taken pursuant to his University employment.

¶ 3 In February 2012, the trial court granted defendant's motion to dismiss.

¶ 4 Plaintiff appeals, arguing the trial court erred (1) in granting defendant's motion to dismiss and, in the alternative, (2) denying his request for leave to amend his complaint. We affirm.

¶ 5 I. BACKGROUND

¶ 6 Prior to his termination, plaintiff worked for the University as the manager of systems services in the college of engineering. During the time plaintiff worked for the University, defendant worked as the assistant dean and director of the engineering information and technology (IT) shared services department in the college of engineering.

¶ 7 In 2009, plaintiff filed an unrelated civil lawsuit against David Goldberg involving an alleged assault. Plaintiff maintains during the pendency of the Goldberg litigation, he “found” a stack of papers in the Champaign News Gazette box at his home. Those papers included copies of emails relevant to his lawsuit against Goldberg. The emails were sent to and received from Deborah Thurston, a University employee. Plaintiff delivered the emails to the attorney representing him in his litigation against Goldberg. Plaintiff's attorney later used those emails as an exhibit (Exhibit A) in the Goldberg litigation.

¶ 8 Thereafter, the University charged plaintiff with improper use of and/or access to electronic communications of a University employee. The University investigated plaintiff's actions with regard to the emails. On September 7, 2010, the University issued a report containing a summary of the investigation and its findings. As a result of the report, plaintiff was sent a termination letter signed by defendant and dated September 23, 2010. The letter indicated plaintiff was given the opportunity to discuss the allegations, but he declined to answer questions related to the charges. That letter also stated the following:

“The University finds that you did in fact engage in the alleged misconduct, violating the University Code of Conduct and the Policy on Appropriate Use of Computers and Network Systems at the University of Illinois at Urbana–Champaign. In particular, we find that you attempted to use the substance of the email messages in ‘Group Exhibit A’ for non-University related purposes and without permission. It is more probable than not that the documents contained in ‘Group Exhibit A’ were obtained from Deborah Thurston's computer. Furthermore, it is more probable than not that you obtained the documents in ‘Group Exhibit A’ through improper access. As an [IT] professional, you did not immediately report the breach of security to your supervisor when you came into possession of the documents constituting ‘Group Exhibit A’.

As you know, the protection and security of our information technology equipment and data are of utmost concern for the University. Given your position's responsibilities to ensure that security and because of your actions, we can no longer trust you to carry out the responsibilities of your position. As such, you cannot perform the essential functions of your position. Therefore, your employment is hereby terminated, effective today, September 23, 2010.”

¶ 9 On September 22, 2011, plaintiff filed a complaint against defendant for defamation per se, false light, and tortious interference with contractual relations based upon the false statements he argues defendant made in the termination letter. Plaintiff's complaint alleged, inter alia, defendant “intentionally and/or recklessly made false statements accusing [p]laintiff of obtaining documents, electronic mail, from Deborah Thurston's computer through improper access.” Plaintiff alleged the report claimed “[a]ccording to senior IT professionals, the [emails] were obtained only from Thurston's computer.” However, plaintiff alleged that, as a participant in the investigation, defendant knew no senior IT professional stated the emails came only from Thurston's computer. The report also claimed the recommendation for plaintiff's termination was based upon an “analysis of the [emails] by senior [IT] professionals at the University.” However, plaintiff alleged defendant participated in the investigation and knew that no forensic analysis by IT professionals had taken place.

¶ 10 According to plaintiff's complaint, on September 23, 2010, defendant “published” the termination letter containing statements from the report, which defendant knew to be false, to plaintiff's personnel file and Elyne Cole, the associate provost for the human resources department. Plaintiff alleged defendant did this because Goldberg was a friend and colleague of defendant, and “upon information and belief” “[d]efendant enjoyed a financial relationship with Mr. Goldberg,” and “had a connection to a grant administered by Mr. Goldberg.”

¶ 11 On November 23, 2011, defendant filed a motion to dismiss pursuant to section 2–619(a)(1) of the Procedure Code (735 ILCS 5/2–619(a)(1) (West 2010)). The motion urged dismissal of plaintiff's complaint for lack of subject-matter jurisdiction. According to defendant, plaintiff's complaint should have been filed in the Court of Claims because in alleging defendant's actions were taken pursuant to his job as assistant dean and director of the college of engineering, he was really alleging a cause of action against the University.

¶ 12 Following a February 6, 2012, hearing, the trial court granted defendant's motion to dismiss with prejudice. The court found, inter alia, plaintiff's complaint

“clearly does not contain sufficient facts to remove this [cause] from what it really is, which is an action against a state body that [plaintiff] believes wrongfully fired him. I don't think you can task this in a personal vein with the—what I agree are—conclusory allegations that [plaintiff] has, had [ sic ] made here. This is something that will bind the State of Illinois because I believe it's alleging that the [S]tate, through its agent, [defendant], wrongfully terminated [plaintiff] and the allegations of a relationship between—on information and belief between—[defendant] and Mr. Goldberg and then the lawsuit involving Mr. Goldberg, I believe, are factually inadequate to remove this from what it really is.

I believe that clearly what we have here, however it is couched, is an action against the [S]tate and that there are inadequate facts alleged that transform this from anything other than [defendant] doing what he thought was best for his employer. Whether that's right or wrong, [p]laintiff has every right to have, have his grievances heard ultimatelybut he must do so in the Court of Claims. * * * Cause dismissed with prejudice.”

¶ 13 After the trial court made its ruling, plaintiff's attorney asked the court if he could have leave to amend the complaint to “cure” the factual defects the court referred to in its ruling. The court denied plaintiff's request.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, plaintiff argues the trial court erred in granting defendant's motion to dismiss his complaint. In the alternative, plaintiff contends the court erred when it denied him leave to amend his complaint. We note defendant's section 2–619(a)(1) motion to dismiss plaintiff's complaint does not attack the sufficiency of the underlying defamation claim nor the allegedly defamatory nature of the termination letter as a section 2–615 motion to dismiss might do. Accordingly, we will not address the merits of plaintiff's claims as alleged.

¶ 17 A. Standard of Review

¶ 18 Section 2–619(a)(1) of the Procedure Code (735 ILCS 5/2–619(a)(1) (West 2010)) provides for dismissal of a cause of action due to the trial court's lack of subject-matter jurisdiction. Siakpere v. City of Chicago, 374 Ill.App.3d 1079, 1081, 313 Ill.Dec. 512, 872 N.E.2d 495, 497 (2007). With a section 2–619 motion to dismiss, the movant admits the legal sufficiency of the plaintiff's complaint but raises an affirmative defense or other matter that avoids or defeats the plaintiff's claim. DeLuna v. Burciaga, 223 Ill.2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229, 236 (2006). “In ruling on such a motion, the court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party.” Melena v. Anheuser–Busch, Inc., 219 Ill.2d 135, 141, 301 Ill.Dec. 440, 847 N.E.2d 99, 103 (2006). A section 2–619 motion presents a question of law, and thus our review of the trial court's ruling on the motion is de novo. Czarobski v. Lata, 227 Ill.2d 364, 369, 317 Ill.Dec. 656, 882 N.E.2d 536, 539 (2008).

¶ 19 B. Sovereign Immunity

¶ 20 “The Illinois Constitution of 1970 abolished the doctrine of sovereign immunity ‘[e]xcept as the General Assembly may provide by law.’ ” PHL, Inc. v. Pullman Bank & Trust Co., 216 Ill.2d 250, 259–60, 296 Ill.Dec. 828, 836 N.E.2d 351, 356 (2005) (quoting Ill. Const. 1970, art. XIII,...